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Patti Ogden, Mastering the Lawless Science of Our Law: a Story Of Notre Dame Law School NDLScholarship Journal Articles Publications 1993 "Mastering the Lawless Science of Our Law": A Story of Legal Citation Indexes Patti J. Ogden Notre Dame Law School Follow this and additional works at: https://scholarship.law.nd.edu/law_faculty_scholarship Part of the Legal History Commons, and the Legal Writing and Research Commons Recommended Citation Patti J. Ogden, "Mastering the Lawless Science of Our Law": A Story of Legal Citation Indexes, 85 Law Libr. J. 1 (1993). Available at: https://scholarship.law.nd.edu/law_faculty_scholarship/118 This Article is brought to you for free and open access by the Publications at NDLScholarship. It has been accepted for inclusion in Journal Articles by an authorized administrator of NDLScholarship. For more information, please contact [email protected]. "Mastering the Lawless Science of Our Law": A Story of Legal Citation Indexes* Patti Ogden** Ms. Ogden presents a history of American legal citation indexes, covering early nineteenth-century attempts, the development of modern citator systems by Frank Shepard and others, online citation systems, and the potentialfor future improvements in an essential tool of legal research. Mastering the lawless science of our law, That codeless myriad of precedent, That wilderness of single instances, Thro' which a few, by wit or fortune led, May beat a pathway out to wealth and fame. Tennyson, "Aylmer's Field" (1793) There is a considerable body of literature on the history of such legal publications as case reports, statutes, periodicals, digests, periodical indexes, and treatises. Lately, a core group of authors has begun speculating about the future of some of these publications.' Legal citators-those "useful but unloved" volumes 2-also have a history and presumably a future, but there exists little documentation or speculation about either. This unfortunate omission should be remedied, if for no other reason than to recount the interesting events and circumstances surrounding the evolution of the citation index. Many people, ranging in prominence from a United States Supreme Court Justice to a pair of attorneys from Dublin, Texas, had a hand in the development of the modern legal citator. Other than the oft-repeated tale of Frank Shepard, few of their stories have been told. Even less attention has been given to the * ©Patti Ogden, 1993. My thanks to Tom Woxland for encouraging me to tackle this project and insisting that I finish it, Ken and Carmela Kinslow for their interlibrary loan efforts, and Roger Jacobs and Jack Pratt for their comments. ** Research Librarian, Kresge Library, Notre Dame Law School, Notre Dame, Indiana. 1. See, e.g., John Doyle, WESTLA W and the American Digest ClassificationScheme, 84 LAW LIBR. J. 229, 253-58 (1992) (discusses future developments of the digest classification scheme); SusAN W. BRENNER, PRECEDENT INFLATION 257-310 (1992) (examines online case reports and the future of precedent); Morris L. Cohen, The Legal Publishing Industry in the 20th Century and Beyond, in SYmposium OF LAW PuLSHEas 9 (Thomas A. Woxland ed. 1991). 2. LAWRENCE M. FRIEDMAN, A HISTORY OF AMERICAN LAW 357 (1973). Law Library Journal [Vol. 85:1 question of what forces and influences sparked the interest of these individuals in this particular form of legal literature, or what effect legal citators may have had on the practice of law and on the law itself. Finally, the future role and format of the citation index, truly a tool for "mastering the lawless science of our law," has yet to be explored. These questions, stories, and issues are the subjects of this article. A few points should be made about the parameters and organization of this study. The focus of this discussion is the legal citator, which is one example of a general class of documents known as "citation indexes." A citation index is "a structured list of all the citations in a given collection of documents... usually arranged so that the cited document is followed by the citing documents.'' 3 This definition is, of course, a modern conception. 4 In tracking the history of the legal citation index, it was necessary to take a broad view of this term. It also proved helpful to organize this study in the following order: a sketch of the first citation index, an examination of some factors leading to the development of legal citation indexes, an account of the rise of the modern legal citator, a look at the citator's impact, and a discussion of the citator's future. I. Simon Greenleaf and Overruled Cases The first compiler of a legal citation index was Simon Greenleaf. In 1807 Greenleaf was the first and only lawyer in the small town of Gray, Maine; he was, in fact, one of about fifty attorneys in the entire Maine territory.5 Like many of his colleagues, Greenleaf was not a college graduate. He began at the age of eighteen to "read" for the law in an attorney's office and, after five years, he was admitted to the bar. He soon opened his own office in Gray, where he practiced for twelve years. The typical legal practice of this period involved frequent appearances in court, and Greenleaf undoubtedly argued his share of cases before the bench. In one of those arguments, he relied upon and cited an English decision which seemed applicable and decisive of the issue. Unfortunately, the case had been overruled, and the court declared it of no authority whatever. "[Greenleaf's] first law book sprang, as we have his own authority for saying, from this circumstance .... He determined at once to ascertain, as far as he could, which of the apparently authoritative cases in the Reports ' 6 had lost their force, and to give the information to the profession. 3. 5 ENCYCLOPEDIA OF LmRARY AND INFORMATION SCIENCE 16 (1971). 4. Ironically, this very definition is a product of the influence of legal citators. See infra p. 5. For a fairly complete account of Simon Greenleaf's life, see WILLLAM WILLIs, A HISTORY OF THE LAW, THE COURTS, AND THE LAWYERS OF MAINE 522-36 (Portland, Bailey & Noyes 1863). 6. Professor Theophilus Parsons, Commemorative Address at Cambridge, Mass. (Oct. 20, 1853), excerpted in 16 MONTHLY L. REP. 413, 414 (1853). 19931 Legal Citation Indexes Greenleaf's ill-fated argument did not arise from any lack of skills as an attorney. On the contrary, the success of his practice in Gray and his later eminence as a legal scholar suggest that he probably was more proficient than the average attorney of his day. Greenleaf was simply working under the normal handicaps of early nineteenth-century lawyers. Sources for researching the law were scarce, which is not surprising given that the nation was less than a generation removed from its birth. No more than twenty states were in the Union, and the first case reports from these states had appeared only within the last twenty-five years. By 1810 there were merely eighteen published volumes of American reports? Lawyers desperate for authority cited English cases freely; in fact, they cited English reports more frequently than American." Beyond case reports, the sources of law were few: treatises on American law were virtually nonexistent, legal periodicals were in a very embryonic stage, Nathan Dane had not yet compiled the first American digest-and Frank Shepard had not even been born. Under these circumstances, Greenleaf's frustration is understanda- ble. Locating a pertinent case was challenge enough; ascertaining the authority of that case added another burdensome level to the research, especially for a sole practitioner in a small Maine town. Practicing law in Gray did have its benefits; the ample time for Greenleaf to read and study the law enabled him to begin work on his table of overruled cases. In 1818 he moved his family to nearby Portland, where his business and fame increased. Although Maine was not yet a state, there was a U.S. Circuit Court in Portland, and the Supreme Court Justice assigned to "ride" this circuit was Joseph Story. Story took a deep interest in educating and encouraging the development of the judges and lawyers of his circuit.9 The working relationship between Greenleaf and Story, which would become extraordinarily close and span their later careers at the Harvard Law School, began with Greenleaf's table of overruled cases. Story learned of Greenleaf's plan to publish the table and offered to supply him with his personal list of overruled cases, extracted from his extensive reading. He also promised to continue forwarding supplements to the list. It is of great importance to the profession to have the list as complete as possible, and I could wish that you could find leisure to extend your examination backward to the time of Dyer. I rejoice that there are gentlemen of the Bar who are willing to devote their leisure to the correction and ministration of the noble 7. CHARLES WARREN, A HISTORY OF THE AMERCMA BAR 557 (1911). 8. FIEDMAN, supra note 2, at 98. 9. R. KENT NEWMYER, SUPREaME COURT JUSTICE JOSEPH STORY 316-22 (1985). Law Library Journal [Vol. 85:1 science of the law. It is redeeming the pledge, which Lord Coke seems to think every man implicitly grants to his profession on entering it. [The list of overruling cases] is eminently useful, because it accustoms lawyers to reason upon principle, and to pass beyond the narrow boundary of authority. I think you would do well to give public notice of your being engaged in this undertaking, as other gentlemen may otherwise engage in the same project. 0 This last bit of advice is interesting. Just the year before, Story recommended to the U.S. Supreme Court Reporter, Henry Wheaton, that a proposed digest of Supreme Court cases include a table much like the one that Greenleaf was constructing.
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